CUB 76523

M.E. LAGACÉ, Umpire

The claimant is appealing the decision of the Board of Referees (the Board) dismissing his appeal from an indefinite disqualification to employment insurance (EI) benefits imposed pursuant to section 29 and 30 of the Employment Insurance Act (the Act) for having voluntarily left his employment without just cause.

Relevant facts
In his appeal to the Board the claimant alleged among other things that he injured himself at work. He produced a medical report (exhibit 8.3) indicating that he had sustained injury at work to the cervical spine and shoulder and that the key aggravating factor for this injury was the type of equipment the claimant was required to use daily at work.

The claimant, corroborated by this medical report, indicates that he was unable to resolve this injury so he could go back to work on non-modified basis and this lead him to leave his job.

True he stated that when he left his employment he also declared that he intended to take online courses to qualify in real estate, but he also stated that his job was affecting his health.

The Commission’s decision
The claimant did not submit any medical evidence to support his claim that he had quit his job for health reasons rather than to take self-study courses online as he had declared having done after leaving his employment. The Commission therefore imposed to the claimant an indefinite disqualification to EI benefits pursuant to section 29 and 30 of the Act for having voluntarily left his employment without just cause.

The Board’s decision
Unfortunately the claimant was not present at the hearing of his appeal by the Board. But he had filed his reasons and produced the above medical note indicating the reasons why he had to leave his employment. The Board decided to render a decision based on the evidence produced.

The Board saw a contradiction in the claimant’s declaration that after leaving his job he started an online real estate course and his other declaration that he quit due to heath. Ultimately the Board adopted in its decision the same reasoning and reasons advanced by the Commission to dismiss the appeal and maintain the indefinite disqualification imposed pursuant to section 29 and 30 of Act.

Appeal to the umpire
In his appeal to the Umpire of the Board’s decision the claimant alleges the same reasons that he had alleged in his appeal to the Board. He explains that he had been unable to attend the hearing of his appeal before the Board because he had found a job and had to work that day. He also questions why the medical report he had produced on November 2, 2009, as exhibit 8.1, was not considered by the Board.

The claimant was not present before the undersigned to sustain his appeal and therefore this decision is based on an analysis of the evidence on record.

Analysis

The applicable standard of review for questions of law is correctness; and the standard of review for a question of mixed fact and law that is mostly legal is reasonableness with little deference (Halle, 2008 FCA 159).

The medical report produced by the claimant close to two months before the hearing of his appeal before the Board constitutes an important piece of evidence supporting the reasons advanced by the claimant for leaving his employment, and should have been considered. True, that piece of evidence was not before the Commission at the time of its decision, but it should however have attracted the attention of the Board at the time of its decision. Still in its decision and for unknown reasons the Board indicates that it did not find any medical evidence or other reasons to suggest that the claimant had to leave his job. Whatever the reasons were for the Board not to consider that piece of evidence, the fact remains that it was not considered in spite of its importance.

Overlooking such an important piece of evidence constitutes an error of law since the Board was bound to consider all the evidence produced by the claimant and not only part of it, as is evidently the case here. This error justifies the annulment of the impugned decision and the referral of the file for reconsideration before a new Board of Referees.

FOR THESE REASONS, the appeal is allowed; the decision of the Board rendered on December 30, 2009 is annulled and will be removed from the file before its referral for reconsideration before a new Board of Referees, with a recommendation to the claimant to ensure he attends the next hearing date to support the reasons of his appeal.

M.E. Lagacé

UMPIRE

Montreal, Quebec
March 18, 2011